Oracle v. Google, Round 1, May Be a Toss-Up

A verdict may be imminent in Oracle v. Google, but it will represent just one decision out of several the jury will be taxed to make in what's expected to be a long and messy trial. A partial verdict, especially in a trial broken into different parts, would not be unusual, said Christopher Collins, an attorney with Vanderpool, Frostick & Nishanian. "It is a complex case, and the stakes are understandably huge."

By Erika Morphy
May 7, 2012 8:58 AM PT

The jury hearing the Google-Oracle copyright violation and patent infringement case is expected to return a verdict on the first phase of the trial -- possibly a partial verdict -- as early as Monday.

The jurors retreated to consider the charges last week, after attorneys for Oracle and Google delivered their final arguments. Oracle alleges that Google's Android operating system violates copyrights and patents on Java technology that it acquired when it bought Sun Microsystems.

Oracle has argued that Google knew it needed a license for Java and ultimately opted not to get one. It offered several compelling pieces of evidence, including emails exchanged within Google discussing whether a license should be pursued.

Google has painted its use of Java in Android as fair use. It argued that Sun Microsystems approved of Google using its copyrights. It also made an emotional appeal to jurors, arguing that the reason Oracle is pursuing this case is because it has been unable to develop its own mobile strategy.

Almost Unanimous

On Friday, the jury was in unanimous agreement on all of the charges in this first phase of the trial -- over Google's alleged violation of Oracle's Java copyright -- except for one, according to news reports.

When the jury re-entered the courtroom after deliberations on Friday, the foreman reportedly said that he believed the undecided jury members could work out the remaining issues with extra time to think.

U.S. District William Alsup dismissed the jurors for the weekend, in the hope they would come to an agreement.

If they are unable to come to do so, however, Alsup reportedly is open to accepting a partial verdict. Google and Oracle have both indicated they will accept a partial verdict as well.

Either way, once the jury delivers its verdict, the trial will move to the next phase -- that is, Oracle's allegations that Android infringes Java patents.

Still, even a partially deadlocked jury could represent a setback for Oracle, which is hoping to win millions of dollars in damages from the suit -- not to mention vindication. A partial verdict could mean that Oracle would only be able to claim relatively small damages.

Premature Speculation

Speculating on how the case could go is premature, even at this late juncture, said Peter S. Vogel, partner with Gardere Wynne Sewell. "There is simply no way to know what questions the jury has decided at this point and how they are thinking."

The questions the jury was tasked to consider were whether Google used copyrighted Oracle material in 37 Java APIs it wrote for Android and, in the event it did, whether it could be considered fair use. The jury was also asked to consider whether Google's supposed use of the copyrighted material was significant.

However, there is much more the jury has to consider than these questions, Vogel said. The judge's instructions to the jury are obviously crucial, as well as the explanation of the relevant copyright law given to the jury.

Multiple Parts

Whatever the verdict, it almost certainly will be just the opening shots of a long struggle between the two companies, Christopher M. Collins, an attorney with Vanderpool, Frostick & Nishanian, told the E-Commerce Times.

"We will have to see what the judge does with post-verdict motions," he said. Surely, there will be an appeal from one of the companies.

A partial verdict, especially in a trial broken into different parts, would not be unusual, Collins said. "It is a complex case, and the stakes are understandably huge."

If the jury finds that Google's use of Oracle's intellectual property was fair use, it could undermine the value of Java and Oracle's acquisition of Sun Microsystems, Vogel said. "If Java were to enter the public domain, that acquisition would clearly be worth far less to Oracle."